04/17/92 CORDELL ROBINSON v. UNITED STATES

Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)

Before Steadman and King, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant seeks reversal of his conviction of armed robbery, D.C. Code §§ 22-2901, -3202 (1989), as an aider and abetter. He contends the trial court erred in (1) admitting, over objection, statements made by the principal after the robbery, (2) sustaining the government's objection to a portion of defense counsel's closing argument, and (3) denying his motion for judgment of acquittal. We affirm.

I.

Appellant and Carlos Coles were in the apartment of Kim Lee and Brenda Fortson on the evening of February 8, 1990, in the Northeast section of the city. Just before 8:00 p.m., Coles carried a telephone from Lee's bedroom into another bedroom where appellant and Fortson, who was appellant's girlfriend, were located. Coles dialed a number, engaged in a brief conversation, and hung up. He then had a conversation with appellant. Shortly thereafter, the phone rang. Either appellant or Coles answered it, spoke briefly, and hung up. Coles then left, and appellant followed "some minutes" later. Appellant told Fortson that he was going to his father's house.

Meanwhile, just before 8:00 p.m., a local Domino's Pizza received a telephone order for pizza to be delivered to an address located a few blocks from the Lee/Fortson apartment. The verification phone number given by the caller was the phone number of the Lee/Fortson apartment. Shortly after the order was received, a Domino's employee dialed the number provided by the caller and verified the order. Samuel May, an employee of Domino's then departed to deliver the pizza. Upon arriving at the address provided by the caller, May learned that no one there had placed the order.

As May headed back to his car, he observed two young males, one taller than the other, approaching from an alley. When May reached his car, he placed his carrying bag, which contained the pizzas, on top of the hood. At that point the taller man (allegedly Coles) shoved a gun in May's face and pushed him across the street. May observed the shorter man (allegedly appellant) taking the pizzas out of the bag. *fn1 Coles then took cash and a beeper from May. Coles waited until the shorter man departed; he then struck May in the face and ran away.

Less than half an hour after departing the Lee/Fortson apartment, Coles returned. He entered Lee's bedroom carrying two boxes of pizza, which he placed on the television set. He then removed his coat. Present in the bedroom were Lee, Fortson, four children, and another adult male. Lee made remarks indicating that she knew Coles had just stolen the pizzas. Fortson testified that Coles then "started talking to us about what happened" and bragged about robbing the Domino's pizza man. Fortson also testified that Coles then took out a BB pistol, fired it into his coat, and then placed the pistol back under his coat.

Less than five minutes after Coles arrived, appellant entered the bedroom *fn2 and immediately stated, "Man, I really had to run fast." In response, Coles said, "I don't know what you're bitching for. I did all the work." Shortly thereafter, Coles produced a beeper. Appellant said, "Give it to me." Coles handed appellant the beeper and said, "Man, if I give you my beeper don't give it away. Give it back to me." The beeper then signaled, and Coles said, "Don't call because it might be Domino's Pizza people trying to call back to trace the call." Lee testified that Coles then removed the gun from under his coat and displayed it to her. She told Coles to put it away, and he placed it back under his coat.

At some point either during or after the conversation, Coles opened one of the pizza boxes. After one pizza was eaten, Coles and appellant left the room with Coles carrying the remaining uneaten pizza. Approximately half an hour later, police officers arrived. Neither appellant nor Coles was in the apartment at that time.

The police recovered two empty pizza boxes which were later subjected to fingerprint analysis. *fn3 Latent prints from the bottom of one pizza box were identified as appellant's left ring finger and left index finger. In addition, latent prints from the top of the same box were identified as appellant's right thumb, right middle finger, and right ring finger. Finally, a latent print from the top of the second box was identified as appellant's left index finger. No testimony was presented that appellant ever touched the pizza boxes in the apartment. Fortson testified that only Coles handled the pizza boxes.

II.

Kim Lee was permitted to testify, over objection, about the three statements made by Carlos Coles in appellant's presence after they returned to the apartment. Those statements, at minimum, circumstantially implicated Coles as the principal participant in the armed robbery. *fn4 In addition, the statements, together with remarks made by appellant in conjunction with the statements, support an inference that appellant was the accomplice in the robbery.

Coles entered Lee's bedroom at approximately 8:30 p.m. carrying the pizzas. Appellant entered a few minutes later remarking, "Man, I really had to run fast." Coles responded, "I don't know what you're bitching for I did all the work. " [Statement 1.] Soon thereafter, Coles took out the beeper. Appellant asked Coles to give it to him. In response Coles stated, "Man, if I give you my beeper don't give it away. Give it back to me. " (Statement 2.) As appellant was examining the beeper, it "went off." ...

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